Foreign Military Students Have Right to Privacy

SAN FRANCISCO (CN) – Allowing the Pentagon to withhold the names of foreign students and instructors taking part in a special school that teaches U.S. Army doctrine, the Ninth Circuit said forcing such disclosure would be an unacceptable invasion of the students’ privacy. The Western Hemisphere Institute for Security Cooperation (WHINSEC) trains foreign military leaders on U.S. Army doctrine, with courses on intelligence analysis, command and other areas, according to its website. But some past attendees used their training to commit atrocities in their home nations, leading to protests against the school and the formation of a watchdog group, School of the Americas Watch, which has continued to lobby for the school’s closure. Through Freedom of Information Act requests in 1994, the group received from the Defense Department the names of attendees and instructors dating back to the school’s formation. The department stopped providing information about the attendees in 2005, however, when Army lawyers decided that foreign attendees had the same right to privacy as U.S. personnel. The school has continued to provide student information to Congress in classified format. And in March 2010, Congress shot down a proposed amendment to the National Defense Authorization Act that would have required publication of personal information of Western Hemisphere students. A year later, School of the Americas Watch members Theresa Cameranesi and Judith Liteky submitted a FOIA request to the Department of Defense’s U.S. Army Training and Doctrine Command for the “names, ranks, branches, countries of origin, list of courses taken or taught, and/or dates and years of attendance of students, instructors and guest instructors at WHINSEC.” While providing some responsive documents, the U.S. Army Training and Doctrine Command redacted portions of the record under Exemption 6 of FOIA, which covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The Defense Department denied Cameranesi and Liteky’s appeal on the same basis. Cameranesi and Liteky then sued, and each side moved for summary judgment. U.S. District Judge Phyllis Hamilton sided with the plaintiffs in April 2013, finding the government’s privacy claims do not meet the standard for Exemption 6 because it “has not established that the privacy interests advanced are substantial, and has not shown through admissible evidence that the release of this information would constitute a clearly unwarranted invasion of personal privacy, in light of the strong public interest in access to this information as shown on the record before the court. The Department of Defense appealed. A panel for the Ninth Circuit reversed Hamilton’s ruling on Friday, agreeing that Exemption 6 does in fact apply to the FOIA request and expressing concern over the safety of the Western Hemisphere’s program participants. “[W]e conclude that the affidavits and other evidence submitted by the DOD are sufficient to carry the DOD’s burden to establish that disclosure of the requested information gives rise to a nontrivial risk of harassment and mistreatment,” Circuit Judge Sandra Ikuta wrote for a three-judge panel. She added: “Because disclosing the names of WHINSEC students and instructors would give rise to a ‘clearly unwarranted’ invasion of privacy, those names are therefore exempt from disclosure under Exemption 6 of FOIA.” In his dissent, Circuit Judge Paul Watford said that protecting identities takes a back seat to public interest. “In my view, on the thin evidentiary record presented, the Department of Defense did not carry its burden of demonstrating that the students’ and instructors’ privacy interests outweigh the strong public interest in disclosure of their names,” Watford wrote.